State v. Marthaller, s. 82-1236

• Decision Date: 23 August 1983
• Docket Number: Nos. 82-1236,83-1370,s. 82-1236
• Citation: 436 So.2d 413
• Parties: The STATE of Florida, Appellant/Petitioner, v. Ralph MARTHALLER, Appellee/Respondent.
• Court: Florida District Court of Appeals

Page 413

436 So.2d 413

The STATE of Florida, Appellant/Petitioner, v. Ralph MARTHALLER, Appellee/Respondent.

Nos. 82-1236, 83-1370.

District Court of Appeal of Florida,

Third District.

Aug. 23, 1983.

Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant/petitioner.

Charles I. Poole, Miami, for appellee/respondent.

Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

We reverse the manifestly erroneous order suppressing a weapon seized from the defendant Marthaller and remand the cause for trial on the information charging Marthaller with carrying a concealed weapon.

The order of suppression under review recites in pertinent part:

"1. At approximately 1:15 A.M., on November 17, 1981, Officers J. Moore and E. MacDougall of the Metro-Dade Police Department responded to a call of a disturbance involving men with guns at the Saga Bay Lounge, 20305 Cutler Road, Dade County, Florida. Upon arrival at the scene, the officers saw the Defendant, Ralph Marthaller, standing outside the door of the lounge. After entering the lounge and obtaining information from several witnesses, Officer Moore learned that the Defendant had been involved in an altercation with another patron inside the lounge approximately 15 minutes earlier and had produced a pistol and threatened the other patron with it.

"2. Returning outside the bar, Officer Moore observed that Defendant Marthaller had a bulge under his shirt in the waistline which resembled the shape and size of a pistol. Upon patting down the Defendant for her own safety, Officer Moore found a loaded .25 caliber sturm revolver in the Defendant's waistband under his shirt. Officer Moore seized the revolver and placed the Defendant under arrest on the charge of carrying a concealed firearm. The pistol was subsequently tested by Officer Moore and found to be in operable condition."

"Wherefore, on the basis of the foregoing facts, the Court finds that the firearm in question was unlawfully seized from the Defendant, Ralph Marthaller, following an illegal search, since the Defendant was physically searched by the arresting officer without being placed under arrest prior to the search for an offense against the laws of the State of Florida."

The intricacies of the law of search and seizure have confounded courts and plagued professors for years and likely will continue to do so for years to come. Thus, it is unusual to find a case, such as the one before us, the result of which is not even fairly debatable and will come as no surprise to the most intransigent criminal defense attorneys and the most critical of law review commentators. The trial court's order is reversed on the authority of McNamara v. State, 357 So.2d 410 (Fla.1978), which, apart from the caliber of the pistol found in the defendant's pocket and the name of the defendant, is indistinguishable from the present case; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which first sanctioned, on even less probability that the defendant was armed, a search such as that made here; and State v. Abislaiman, 437...